Most commentators, including the VC’s own Dale Carpenter, have concluded after the Proposition 8 oral argument that the Supreme Court is unlikely to strike down the California law banning gay marriage. I predicted such an outcome last year, and in this recent post, pointing out that the Supreme Court is unlikely to announce a nationwide right to gay marriage at a time when 41 states still deny it, and that there is no logical way for the Court to justify a “minimalist” decision that would apply to California alone.

Nonetheless, I think many people have been too quick to bury the anti-Proposition 8 cause after Tuesday’s argument. I agree with Dale and others that the Court may well dismiss the case on standing grounds. But if it reaches the merits, it is far from certain that Proposition 8 will survive. As most experts agree, the four liberal justices are likely to vote to strike down Proposition 8. So they would need to pick up only one conservative justice to get a majority. The key swing voter, Justice Anthony Kennedy, expressed skepticism about some of the plaintiffs’ arguments. But he also suggested he is considering the possibility that Proposition might constitute sex discrimination, in which case it would be subject to heightened “intermediate” scrutiny that it probably cannot survive. Moreover, he expressed concern about the 40,000 children being raised by gay and lesbian couples in California. Finally, it is difficult to gauge the impact on Kennedy of a striking concession made by Charles Cooper, the lawyer defending Proposition 8:

JUSTICE SOTOMAYOR: Outside of the -­ outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?

MR. COOPER: Your Honor, I cannot. I do not have any — anything to offer you in that regard.

If there is no rational reason for a state to discriminate against homosexuals in any other area of public policy, it’s hard to see why there is one in the marriage context – especially in a state like California, where gays and lesbians already have the right to adopt children, and – through civil unions -already have all the substantive legal rights usually associated with marriage. In such a context, the denial of marriage rights to gays and lesbians seems largely a result of anti-gay prejudice, and Kennedy is the author of the Supreme Court’s 1996 decision in Romer v. Evans, which ruled that “animus”-based discrimination against gays and lesbians is constitutionally suspect.

As is often the case with Justice Kennedy, his intentions are not easy to read. He could well decide to uphold Proposition 8, or – more likely – choose not to reach the merits of the gay marriage issue at all. But if the Court does decide on the merits, it is not a foregone conclusion that Proposition 8 will survive.